Pub Date : 2019-12-15DOI: 10.7591/cornell/9781501702501.003.0008
J. Farrier
This concluding chapter assesses whether federal courts can stop the systemic dysfunction in the separation of powers by policing every allegedly egregious instance of presidential overreach and/or force members of the House and Senate to revive institutional ambition? This book answers no, while also acknowledging the deep and broad existential crisis that has led hundreds of members to seek relief outside of the chambers' vast arsenal of existing constitutional weapons. The twelve interviews conducted for this book explored the “awful” side of congressional delegation of power and executive expansion, which are more than theoretical constitutional arguments. The human consequences of executive branch unilateralism can be tragic, with ripple effects that last decades. These points were especially prominent among members and attorneys on specific foreign policies that have destabilized governments around the world and inflicted lasting harm to innocent civilians and, some argue, long-term U.S. national security. The “lawful” perspective of these conflicts is not necessarily a defense of these policies, nor a muscular executive branch in general. Rather, federal judges cannot take on the presidency in sustained and meaningful ways without Congress's support for its own prerogatives and powers—regardless of which party is in power and where.
{"title":"Lawful but Awful","authors":"J. Farrier","doi":"10.7591/cornell/9781501702501.003.0008","DOIUrl":"https://doi.org/10.7591/cornell/9781501702501.003.0008","url":null,"abstract":"This concluding chapter assesses whether federal courts can stop the systemic dysfunction in the separation of powers by policing every allegedly egregious instance of presidential overreach and/or force members of the House and Senate to revive institutional ambition? This book answers no, while also acknowledging the deep and broad existential crisis that has led hundreds of members to seek relief outside of the chambers' vast arsenal of existing constitutional weapons. The twelve interviews conducted for this book explored the “awful” side of congressional delegation of power and executive expansion, which are more than theoretical constitutional arguments. The human consequences of executive branch unilateralism can be tragic, with ripple effects that last decades. These points were especially prominent among members and attorneys on specific foreign policies that have destabilized governments around the world and inflicted lasting harm to innocent civilians and, some argue, long-term U.S. national security. The “lawful” perspective of these conflicts is not necessarily a defense of these policies, nor a muscular executive branch in general. Rather, federal judges cannot take on the presidency in sustained and meaningful ways without Congress's support for its own prerogatives and powers—regardless of which party is in power and where.","PeriodicalId":315952,"journal":{"name":"Constitutional Dysfunction on Trial","volume":"85 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117264564","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-12-15DOI: 10.7591/cornell/9781501702501.003.0006
J. Farrier
This chapter examines the breadth of executive power expansion in the twentieth century. It does this by studying private litigation cases that challenged presidential firings by Woodrow Wilson and Franklin Roosevelt; the landmark “Steel Seizure” case under Harry Truman; financial settlements related to the Iran hostage crisis; the post-9/11 cases of detainee treatment; and the most recent passport case on the U.S. policy toward Israel's capital. In almost all of these private litigation cases, the Supreme Court looked at congressional intention and action to guide their decisions. These precedents help one to understand the most recent legal controversies against President Donald Trump. Wherever federal courts can find Congress's delegation of power, presidents will likely win.
{"title":"Silence Is Consent for the Modern Presidency","authors":"J. Farrier","doi":"10.7591/cornell/9781501702501.003.0006","DOIUrl":"https://doi.org/10.7591/cornell/9781501702501.003.0006","url":null,"abstract":"This chapter examines the breadth of executive power expansion in the twentieth century. It does this by studying private litigation cases that challenged presidential firings by Woodrow Wilson and Franklin Roosevelt; the landmark “Steel Seizure” case under Harry Truman; financial settlements related to the Iran hostage crisis; the post-9/11 cases of detainee treatment; and the most recent passport case on the U.S. policy toward Israel's capital. In almost all of these private litigation cases, the Supreme Court looked at congressional intention and action to guide their decisions. These precedents help one to understand the most recent legal controversies against President Donald Trump. Wherever federal courts can find Congress's delegation of power, presidents will likely win.","PeriodicalId":315952,"journal":{"name":"Constitutional Dysfunction on Trial","volume":"112 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132209307","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-12-15DOI: 10.7591/9781501744464-007
{"title":"6. So Sue Him","authors":"","doi":"10.7591/9781501744464-007","DOIUrl":"https://doi.org/10.7591/9781501744464-007","url":null,"abstract":"","PeriodicalId":315952,"journal":{"name":"Constitutional Dysfunction on Trial","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127568687","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-12-15DOI: 10.7591/9781501744464-003
{"title":"2. Suing to Save the War Powers Resolution","authors":"","doi":"10.7591/9781501744464-003","DOIUrl":"https://doi.org/10.7591/9781501744464-003","url":null,"abstract":"","PeriodicalId":315952,"journal":{"name":"Constitutional Dysfunction on Trial","volume":"80 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131107814","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-12-15DOI: 10.7591/cornell/9781501702501.003.0003
J. Farrier
This chapter explores the consequence of four decades of congressional and judicial restraint that followed the passage of the 1973 War Powers Resolution. The member lawsuits began with four challenges to President Ronald Reagan (on El Salvador, Nicaragua, Grenada, and the Iran–Iraq War), and one each against George H. W. Bush (Persian Gulf War), Bill Clinton (Kosovo), George W. Bush (Iraq), and Barack Obama (Libya). These cases were dismissed for different reasons by the federal courts, citing mootness, ripeness, standing, the political question doctrine, and equitable discretion, usually in some combination, as barriers to adjudication. Upon dismissal, federal courts placed the entire burden to rein in presidential power on supermajorities in Congress, even though prior authorization may not have occurred. This disapproval would ultimately require two-thirds of both chambers to override a presidential veto. In these ways, federal courts normalized the very dynamics the member-plaintiffs were targeting in their suits.
{"title":"Suing to Save the War Powers Resolution","authors":"J. Farrier","doi":"10.7591/cornell/9781501702501.003.0003","DOIUrl":"https://doi.org/10.7591/cornell/9781501702501.003.0003","url":null,"abstract":"This chapter explores the consequence of four decades of congressional and judicial restraint that followed the passage of the 1973 War Powers Resolution. The member lawsuits began with four challenges to President Ronald Reagan (on El Salvador, Nicaragua, Grenada, and the Iran–Iraq War), and one each against George H. W. Bush (Persian Gulf War), Bill Clinton (Kosovo), George W. Bush (Iraq), and Barack Obama (Libya). These cases were dismissed for different reasons by the federal courts, citing mootness, ripeness, standing, the political question doctrine, and equitable discretion, usually in some combination, as barriers to adjudication. Upon dismissal, federal courts placed the entire burden to rein in presidential power on supermajorities in Congress, even though prior authorization may not have occurred. This disapproval would ultimately require two-thirds of both chambers to override a presidential veto. In these ways, federal courts normalized the very dynamics the member-plaintiffs were targeting in their suits.","PeriodicalId":315952,"journal":{"name":"Constitutional Dysfunction on Trial","volume":"60 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126688184","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-12-15DOI: 10.7591/cornell/9781501702501.003.0002
J. Farrier
This chapter demonstrates that courts were once comfortable entering into the fray when they have clear congressional guidelines about war authorization (private lawsuits) and when members of Congress press their claims through political as well as legal channels (Cambodia cases). It also shows that federal courts can have a place in war powers conflicts—and they did up through the mid-twentieth century, but only in individual plaintiff cases. Although no federal court has ever ordered a president to stop a war, there was once more comfort in judicial engagement in war-related constitutional questions, at least from the founding generation through the Civil War and beyond; the Cold War changed all three branches' orientations. Member litigation began during the Vietnam War out of frustration with imbalance of power that took permanent root in the Cold War and then remained in the political culture under new international pressures in the 1990s and after 9/11. The chapter then details the first two member cases surrounding the Vietnam War's expansion.
{"title":"War Is Justiciable, Until It Isn’t","authors":"J. Farrier","doi":"10.7591/cornell/9781501702501.003.0002","DOIUrl":"https://doi.org/10.7591/cornell/9781501702501.003.0002","url":null,"abstract":"This chapter demonstrates that courts were once comfortable entering into the fray when they have clear congressional guidelines about war authorization (private lawsuits) and when members of Congress press their claims through political as well as legal channels (Cambodia cases). It also shows that federal courts can have a place in war powers conflicts—and they did up through the mid-twentieth century, but only in individual plaintiff cases. Although no federal court has ever ordered a president to stop a war, there was once more comfort in judicial engagement in war-related constitutional questions, at least from the founding generation through the Civil War and beyond; the Cold War changed all three branches' orientations. Member litigation began during the Vietnam War out of frustration with imbalance of power that took permanent root in the Cold War and then remained in the political culture under new international pressures in the 1990s and after 9/11. The chapter then details the first two member cases surrounding the Vietnam War's expansion.","PeriodicalId":315952,"journal":{"name":"Constitutional Dysfunction on Trial","volume":"57 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124770482","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：